Dralle v. Ruder

JUSTICE CLARK, specially concurring:

I agree that the plaintiffs’ claim for loss of their son’s companionship and society, sounding in strict liability, was properly dismissed. But I cannot agree with the reasoning of the majority opinion.

I

No one can accuse the majority of taking the easy way out. The majority reaches out to decide this case on a broad and difficult ground, ignoring a far easier and less controversial resolution. There is agreement that a plaintiff alleging strict product liability can only recover for physical harm to his person or property. (See Restatement (Second) of Torts §402A (1965).) In fact, we have specifically held that a plaintiff in a strict product liability action may not recover for emotional distress. (Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 38 .) Because it involved a claim for distress by the parents of an injured minor child, Woodill closely resembles this case, and should have been dispositive. Loss of companionship and society do not constitute “physical harm.” Moreover, policy strongly favors limitations upon recovery in strict liability actions. Strict liability dispenses with the requirement of fault. It is accordingly reasonable to hold that the nonnegligent manufacturers of defective products should be liable only for the most easily ascertainable and remediable forms of injury — physical harm and damage to property. I would have heartily agreed with a holding confined to this narrow and reasonable proposition.

II

But I cannot agree with the majority’s actual holding, which is neither narrow nor reasonable. We have previously determined that parents in a wrongful death action are entitled to a presumption of injury for the loss of their child’s society, without regard to whether their child is a minor (Bullard v. Barnes (1984), 102 Ill. 2d 505 ), or an adult (Ballweg v. City of Springfield (1986), 114 Ill. 2d 107 ). Our reasoning in those cases simply extended to the parents of a fatally injured child the rights previously granted to the surviving child of a fatally injured parent (Hall v. Gillins (1958), 13 Ill. 2d 26 ) and to the surviving partner of a marriage (e.g., Elliot v. Willis (1982), 92 Ill. 2d 530 ). We have also recognized that one marital partner may recover for loss of society and consortium caused by nonfatal injuries to the other. (Dini v. Naiditch (1960), 20 Ill. 2d 406 .) In sum, we have previously recognized as compensable injuries to a wide variety of family ties and relationships. These prior cases are not determinative. But together with cases on point from other jurisdictions (Howard Frank, M.D., P.C. v. Superior Court (1986), 150 Ariz. 228 , 722 P.2d 955 ; Yordon v. Savage (Fla. 1973), 279 So. 2d 844 ; Sizemore v. Smock (1986), 155 Mich. App. 745 , 400 N.W.2d 706 , appeal granted (1987), 428 Mich. 873 , 402 N.W.2d 469 ; Norvell v. Cuyahoga County Hospital (1983), 11 Ohio App. 3d 70 , 463 N.E.2d 111 ; Shockley v. Prier (1975), 66 Wis. 2d 394 , 225 N.W.2d 495 ), they strongly suggest that we should allow recovery to a parent who, through nonfatal injury, suffers the loss of his child’s society.

The majority attempts to distinguish these cases in two different ways. Cases recognizing loss of a child’s society as the result of fatal injury, such as Bullard, are treated as distinguishable because they involved actions under our wrongful death act, while cases which involved nonfatal injuries, such as Dini, are distinguished on the basis that they involved damage to marital rather than filial relationships. The majority is correct in stating that these factual distinctions exist. But I am not persuaded that they compel the majority’s favored conclusion. A difference which makes no difference is no difference. Unless the two distinctions — between fatal and nonfatal injuries and between marital and filial relationships — relate to some underlying policy which actually supports a different result, they do not and should not matter.

The origins of the common law prohibition against parental recovery for loss of a child’s society reveal the poverty of the majority’s reasoning. At common law, the consortium action was derived from the right of a master to recover for tortious injury to his servants, since in such a case, the master would suffer a loss of services in addition to whatever loss the servant himself suffered. (W. Prosser & W. Keeton, Torts §125, at 931 (5th ed. 1984).) The action was gradually expanded to allow recovery for loss of the services of a wife (Note, The Child’s Right to Sue for Loss of a Parent’s Love, Care, and Companionship Caused by Tortious Injury to the Parent, 56 B.U.L. Rev. 722, 724 (1976)), or of a child (Note, Torts — Parents Recovery for Loss of Society and Companionship of Child, 80 W. Va. L. Rev. 340 , 341 (1978)). In all three instances the consortium action reflected a patriarchal society in which wives, servants, and children were all treated as the wards or chattels of the husband/master/father. In the case of a wife, “consortium” came to include not only material services, but also “elements of companionship, felicity, and sexual intercourse, all welded into a conceptualistic unity.” (Dini, 20 Ill. 2d at 427 .) With the belated recognition that a wife could also recover for loss of consortium, the spousal action was freed from its patriarchal origins.

The action for loss of a child’s services, however, has remained mired in the mental world of our ancestors. When brutal child labor flourished, and “ample work could be found for the agile bodies and nimble fingers of small children” (Wycko v. Gnodtke (1960), 361 Mich. 331, 335 , 105 N.W.2d 118, 120 ), it may have been reasonable to regard the child’s earnings as the crucial component of the child’s value to his parent. Today, however, “a plethora of laws aimed at children, e.g., child labor and compulsory education laws, virtually guarantees that children will not be an economic asset to their parents. Children are now valued for their society and companionship” (Howard Frank, M.D., P.C. v. Superior Court (1986), 150 Ariz. 228, 232 , 722 P.2d 955, 959 ), and “[t]he true significance of a parent’s action under modem practice is that it compensates the parents’ emotional losses when their child has been injured” (56 B.U.L. Rev. at 731-32). Only child performers or prodigies are likely to make enough money to justify a parental action for loss of services. In modem times, compensation only for the value of a minor’s services usually means no compensation at all.

While the common law rationale for differing treatment of spousal and filial consortium actions cannot therefore justify denial of an action for loss of a child’s society, I am equally unpersuaded by the majority’s contention that the continued difference in treatment is somehow justified by inherent differences in the marital and filial relationships. The majority contends that many of the attributes of a marital relationship, such as “companionship, felicity, and sexual intercourse,” are “absent from the parent-child relationship.” (124 Ill. 2d at 72.) But which attributes are missing? The majority cannot be seriously contending that parent-child relations lack felicity or companionship. What the majority must mean, although reticence apparently prevents it from making the distinction explicit, is that normal parent-child relationships are lacking in one key ingredient: sex.

I do not contend that, setting sex aside, filial and marital relations can be equated. While they share much in common, they differ in the texture of their emotional fabric. But I am puzzled by the majority’s implicit assumption that the relationship between parent and child is somehow less important than the relationship between husband and wife. Marriage is a basic right “fundamental to our very existence and survival.” (Loving v. Virginia (1967), 388 U.S. 1, 12 , 18 L. Ed. 2d 1010, 1018 , 87 S. Ct. 1817, 1824 .) But it is fundamental to our very existence and survival in great part because it is the vessel through which we bear and rear our successors. It provides us with a tangible human link to the future. It is very late in the day to deny that a parent — even an unmarried parent — has a fundamental right to the “ ‘the companionship, care, custody, and management of his or her children.’ ” (Santosky v. Kramer (1982), 455 U.S. 745, 758 , 71 L. Ed. 2d 599, 610 , 102 S. Ct. 1388, 1397 .) An injury to an interest in the companionship of a child is no less wounding than an injury to an interest in the companionship of a spouse.

If the majority’s distinction between filial and marital relationships makes very little sense, its attempt to distinguish between fatal and nonfatal injury makes even less. I agree with the Arizona Supreme Court that “no meaningful distinction can be drawn between death and severe injury where the effect on consortium is concerned. Often death is separated from severe injury by mere fortuity ***.” (Howard Frank, M.D., P.C. v. Superior Court (1986), 150 Ariz. 228, 230 , 722 P.2d 955, 957 .) In addition,

“It is easy to see that the loss of a child through his death takes from his parents the society and companionship that is the essence of the lost relationship. But consider the magnitude of the loss of society and companionship that occurs when a normal [child] is suddenly reduced to a blind, nearly deaf, partially paralyzed child with a mental age of three. The parental expectations for the continuation of the family relationship are the same in either case. That the parents still have their son to love and care for is a factor to consider in determining the extent of their loss, but does not negate the loss. They have sustained a genuine loss in the nature of the society and companionship they can anticipate receiving from their son as a consequence of his injuries. Perhaps the loss of companionship and society experienced by the parents of a child permanently and severely injured *** is in some ways even greater than that suffered by parents of a deceased child. Not only has the normal family relationship been destroyed, as when a child dies, but the parent is also confronted with his loss each time he is with the child and experiences again the child’s diminished capacity to give comfort, society, and companionship.” Note, The Parental Claim for Loss of Society and Companionship Resulting from the Negligent Injury of a Child: A Proposal for Arizona, 1980 Ariz. St. L.J. 909 , 923.

I also find unpersuasive the “policy considerations” which the majority believes distinguish nonfatal and fatal injuries. Recognizing a cause of action will not open the floodgates of litigation or let loose the demons from Pandora’s Box. Loss of society is an injury to familial relationships which has never been applied to relations among friends, or even to noncustodial relatives. Moreover, in the vast majority of cases, the child’s injuries will neither be so serious nor so permanent as to support a claim for loss of society. Sudden increases in the scope of liability are a legitimate concern, especially where, as here, damages are difficult to quantify. But a general fear of increasing liability cannot justify a court in subjecting liability to arbitrary limits. Unlike the legislature, which can curtail liability either by imposing dollar limits on awards or by prohibiting recovery altogether, we must base any limits we impose on rational distinctions between cases. The distinction between fatal and nonfatal injury is not rational.

The majority also raises the spectre of a “double recovery,” i.e., of a jury which compensates both the child and the parent for the child’s pain and suffering. This problem, even assuming it really exists, is equally present in an action for loss of spousal consortium. Moreover, it is a problem which can be rectified by carefully instructing the jury to distinguish between the injuries of the parent and the injuries of the child. Indeed, the majority here has resurrected the same argument which was rejected as implausible in Dini, 20 Ill. 2d at 426-27 .

Lastly, the majority relies on the specious argument also used to deny recovery in such decisions as Cockrum v. Baumgartner (1983), 95 Ill. 2d 193 , and Goldberg v. Ruskin (1986), 113 Ill. 2d 482 . Given my dissents in those cases, it will come as no surprise that I am still unable to understand why claims for “wrongful birth” and “wrongful life” involve some sort of paradoxical denigration of the value of human existence. I am still less able to understand why a claim that an injury has deprived a child of the ability to provide the normal degree of love and companionship is “paradoxical.” Is it any more paradoxical for the plaintiff in an ordinary personal injury case to argue that his own capacity to enjoy life has been diminished by pain and suffering? Any claim of personal injury necessarily involves a claim that the plaintiff’s own existence is, at least in some respect, less “valuable” than before, and that the plaintiff deserves compensation to make up for that loss in value. The paradoxes which perplex the majority are self-created; they cannot and should not compel us to deny compensation to those actually injured by the carelessness of others.

For these reasons, I specially concur.